De Reyes v. Waples Mobile Home Park Ltd. P'ship

• Decision Date: 12 September 2018
• Docket Number: No. 17-1723,17-1723
• Parties: Rosy Giron de REYES; Jose Dagoberto Reyes; Felix Alexis Bolaños; Ruth Rivas; Yovana Jaldin Solis; Esteban Ruben Moya Yrapura; Rosa Elena Amaya; Herbert David Saravia Cruz, Plaintiffs - Appellants, v. WAPLES MOBILE HOME PARK LIMITED PARTNERSHIP; Waples Project Limited Partnership; A.J. Dwoskin & Associates, Inc., Defendants - Appellees. Laura E. Gómez; Ian Haney López; Michael A. Olivas ; Stephen Pitti; John D. Trasviña; Eva Plaza; Elizabeth Julian; Gustavo Velasquez, Amici Supporting Appellants, National Apartment Association, Amicus Supporting Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

903 F.3d 415

Rosy Giron de REYES; Jose Dagoberto Reyes; Felix Alexis Bolaños; Ruth Rivas; Yovana Jaldin Solis; Esteban Ruben Moya Yrapura; Rosa Elena Amaya; Herbert David Saravia Cruz, Plaintiffs - Appellants,

v. WAPLES MOBILE HOME PARK LIMITED PARTNERSHIP; Waples Project Limited Partnership; A.J. Dwoskin & Associates, Inc., Defendants - Appellees.Laura E. Gómez; Ian Haney López; Michael A. Olivas ; Stephen Pitti; John D. Trasviña; Eva Plaza; Elizabeth Julian; Gustavo Velasquez, Amici Supporting Appellants,National Apartment Association, Amicus Supporting Appellee.

No. 17-1723

United States Court of Appeals, Fourth Circuit.

Argued: March 21, 2018

Decided: September 12, 2018

ARGUED: Archith Ramkumar, QUINN EMANUEL URQUHART & SULLIVAN, LLP, Washington, D.C., for Appellants. Terra White Fulham, COVINGTON & BURLING LLP, Washington, D.C., for Amici John D. Trasvina, Eva Plaza, Elizabeth Julian, and Gustavo Velasquez. Michael Sterling Dingman, REED SMITH LLP, McLean, Virginia, for Appellees. ON BRIEF: Matthew A. Traupman, New York, New York, Jongwook "Wookie" Kim, QUINN EMANUEL URQUHART & SULLIVAN, LLP, Washington, D.C.; Simon Sandoval-Moshenberg, Angela Ciolfi, Nady Peralta, LEGAL AID JUSTICE CENTER, Falls Church, Virginia, for Appellants. Colin E. Wrabley, M. Patrick Yingling, Pittsburgh, Pennsylvania, Grayson P. Hanes, Justin deBettencourt, REED SMITH LLP, McLean, Virginia, for Appellees. Gregory F. Laufer, Andrew J. Markquart, Andrew Kau, New York, New York, Paul D. Brachman, PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP, Washington, D.C., for Amici Laura E. Gomez, Ian Haney Lopez, Michael A. Olivas, and Stephen Pitti. Caroline Brown, Samuel Adriance, COVINGTON & BURLING LLP, Washington, D.C. for Amici John D. Trasvina, Eva Plaza, Elizabeth Julian, and Gustavo Velasquez.

Before KEENAN, WYNN, and FLOYD, Circuit Judges.

Vacated and remanded by published opinion. Judge Floyd wrote the opinion, in which Judge Wynn joined. Judge Keenan wrote a separate dissenting opinion.

FLOYD, Circuit Judge:

Four Latino couples who live or lived at Waples Mobile Home Park (the "Park") challenge the Park’s policy requiring all occupants to provide documentation evidencing legal status in the United States to renew their leases (the "Policy"). Plaintiffs contend that the Policy violates the Fair Housing Act ("FHA") because it disproportionately ousts Latinos as compared to non-Latinos. To state an FHA claim under a disparate-impact theory of liability, the plaintiff is required to demonstrate that the challenged practices have a " ‘disproportionately adverse effect on minorities’ and are otherwise unjustified by a legitimate rationale." Tex. Dep’t of Housing & Cmty. Affairs v. Inclusive Communities Project, Inc. , ––– U.S. ––––, 135 S.Ct. 2507, 2513, 192 L.Ed.2d 514 (2015) (quoting Ricci v. DeStefano , 557 U.S. 557, 577, 129 S.Ct. 2658, 174 L.Ed.2d 490 (2009) ). Additionally, the plaintiff must demonstrate a robust causal connection between the defendant’s policy and the disparate impact. The district court determined that Plaintiffs failed to make a prima facie case of disparate impact because they failed to show the required causation between the Policy and the disparate impact, and consequently granted Defendants’ motion for summary judgment. For the reasons that follow, we now vacate and remand the district court’s judgment.

I.

A.

The Park is owned and operated by several entities: Waples Mobile Home Park Limited Partnership; Waples Project Limited Partnership; and A.J. Dwoskin & Associates, Inc. (collectively, "Waples" or "Defendants"). Waples leases approximately 150 lots in Fairfax, Virginia, on which tenants park their mobile homes, and Waples serves as landlord for the Park. As part of its leasing and annual lease renewal policies, Waples requires all individuals who live at the Park to present either (1) an original Social Security card, or (2) an original (foreign) Passport, original U.S. Visa, and original Arrival/Departure Form (I-94 or I-94W), which together evince legal status in the United States.¹ Under the Policy, tenants who have one or more occupants who do not provide the required documentation will not have their leases renewed and are subject to eviction. Waples asserts that the Policy is necessary to confirm lease applicants’ identities, to perform credit and criminal background checks, to minimize loss from eviction, to avoid potential criminal liability for harboring illegal aliens, and to underwrite leases.

Previously, Waples only enforced this Policy against the leaseholder. In mid-2015, however, Waples started requiring this documentation for all occupants over the age of eighteen. When one or more occupants had not complied with the Policy, Waples provided notice that the leaseholder had 21 days from receipt of the notification to cure the violation, or 30 days from receipt to vacate the Park. These notifications were addressed to the entire household, including tenants who had complied with the policy. Waples also converted these leases to month-to-month leases, and charged leaseholders an additional $100 for each month a non-complying tenant had not vacated the lot, which Waples increased on June 1, 2016, to a $300 per month surcharge.

Plaintiffs are four couples who live or lived in the Park with their children: Jose Dagoberto Reyes and Rosy Giron de Reyes (the "Reyes family"); Felix Alexis Bolaños and Ruth Rivas (the "Bolaños family"); Esteban Ruben Moya Yrapura and Yovana Jaldin Solis (the "Yrapura family"); and Herbert David Saravia Cruz and Rosa Elena Amaya (the "Saravia Cruz family"). Plaintiffs are all non-citizen Latinos of Salvadorian or Bolivian national origin. The four male plaintiffs each have a Social Security number and have provided documentation to satisfy the Policy, and the ten children living with Plaintiffs are each U.S. citizens, but the four female plaintiffs cannot satisfy the Policy because each female plaintiff is an illegal immigrant.

When the male plaintiffs initially leased a lot in the Park, three of the female plaintiffs were not listed on the lease applications, despite the requirement to list all adult tenants on the application. The male plaintiffs had each renewed their year-long leases without complying with the Policy, though Waples knew at least some of the female plaintiffs were living in the Park. In mid-2015, when Waples began enforcing the Policy’s requirement that all adult tenants provide the required documentation, the four female plaintiffs attempted to use alternative methods to comply with the Policy, including providing their U.S. government-issued Individual Taxpayer Identification Numbers ("ITINs"),² which Plaintiffs alleged can be used to run background checks and credit reports. Waples declined to accept any alternative forms of identification.

In March 2014, Waples notified the Reyes family that Rosy Reyes needed to comply with the Policy, but permitted the Reyes family to renew their one-year lease without complying. In March 2015, at the expiration of the lease, Waples notified the Reyes family that they would be placed on a month-to-month lease and be subject to a $100 per month surcharge for non-compliance with the Policy. In early 2016, Waples sent notifications and placed the Yrapura, Saravia Cruz, and Bolaños families on month-to-month leases with a $100 per month surcharge for non-compliance with the Policy. Waples later sent all Plaintiffs notification that the monthly surcharge would increase to $300, but agreed not to charge or collect this increase during the pendency of this litigation.

At the time of filing the Complaint, only one Plaintiff couple had vacated the Park under threat of eviction; the other three Plaintiff couples continued to reside at the Park but feared eviction. By the time Plaintiffs filed their cross-motion for summary judgment, three Plaintiff families had been forced to move out of the Park because of threats of eviction and rent increases, and the remaining family was facing eviction but had not yet moved.

B.

Plaintiffs commenced this lawsuit on May 23, 2016, by filing a six-count complaint, including a claim under the FHA, 42 U.S.C. § 3604, which is the only claim involved in this appeal. As relevant to the procedural posture of this case, an FHA claim can proceed under either a disparate-treatment or a disparate-impact theory of liability, and a plaintiff is not required to elect which theory the claim relies upon at pre-trial, trial, or appellate stages. See Wright v. Nat’l Archives & Records Serv. , 609 F.2d 702, 711 n.6 (4th Cir. 1979). Under a disparate-treatment theory of liability, a "plaintiff must establish that the defendant had a discriminatory intent or motive," whereas "a plaintiff bringing a disparate-impact claim challenges practices that have a disproportionately adverse effect on minorities and are otherwise unjustified by a legitimate rationale." Inclusive Communities , 135 S.Ct. at 2513 (internal quotation marks omitted). Under the disparate-impact theory, the plaintiff must also demonstrate a causal connection between the defendant’s policy and the statistical disparity. Id. at 2523.

In their Complaint, Plaintiffs alleged that Waples’ Policy violates the FHA because it "is disproportionately ousting Hispanic or Latino (‘Latino’) families from their homes and denying them one of the only affordable housing options in Fairfax County, Virginia." J.A. 27. To support their argument, Plaintiffs provided statistical evidence of the "strong link [ ] between the undocumented immigrant population and the Latino population" to demonstrate that "a policy that adversely affects the undocumented immigrant population will likewise have a significant disproportionate impact on the Latino population." J.A. 39. These statistics included that Latinos constitute 64.6% of the total undocumented immigrant population in Virginia, and that Latinos are ten times more likely than non-Latinos to be adversely affected by the Policy,...